Intellectual Property: Patents, Trademarks, and Copyrights

A fair use analysis helps you to determine a copyright holder's rights versus a copyright user's freedom of expression rights. How is fair use tied to Copyright? Section 107 of the Copyright Act of 1976 provides the media, educators, researchers and others with limited fair use rights to copy and use portions of copyrighted works without violating copyright. It promotes social benefit and is vital to the growth of knowledge. As Supreme Court Justice Sandra Day O’Connor observed in Feist Pubs., Inc. v. Rural Tel. Svc. Co., Inc., 499 U.S. 340 (1991), the primary purpose of copyright is to “build freely upon the ideas and information conveyed by a work…It is the means by which copyright advances the progress of science and art.” In other words, fair use of copyrighted works favors progress. A study of the Computer and Communications Industry Association found that fair use adds to U.S. economic growth, contributing one-sixth of GDP. [i] However, fair use does not mean unlimited use.

Fair Use Continua image by Carrie Russell from Complete Copyright: An Everyday Guide for Librarians, 2004, American Library Association. Image under a Creative Commons BY Attribution Only License.

Fair use allows flexibility favoring the public’s limited use of copyrighted works without permission from the author. There are four fair use factors as shown above. You must review these four factors together in accessing whether your limited use is fair use. Each scenario must be evaluated on a case-by-case basis, balancing these four factors:

• the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; NOTE: if the copyrighted work is being used for a different purpose than that of the original, it may be a transformative use. Examples include quotations incorporated in a report or multimedia mash-ups included in commentary or criticism.
• the nature of the copyrighted work, factual versus creative;
• the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
• the market effect of the use of, or value of, the copyrighted work.

When at least three of the four factors favor fair use, then more than likely the scenario is a fair use.

When the factors are evenly split, you must decide whether it is worth the risk or not. See the Fair Use Checklist for conducting a Fair Use analysis before using copyrighted materials on how to handle factor analysis when evenly split. You might contact your organization’s legal counsel. If still in doubt, ask for permission. When less than half of the factors favor fair use, then definitely authorization should be obtained. Fair use applied to your specific situation may vary depending on the type of use, as well as the type of user, e.g. educational versus commercial use. The original source of the fair use checklist by Kenneth Crews and Dwayne Buttler is found at Columbia University Libraries' Copyright Advisory Services.

The Center for Media and Social Impact (CMSI) has created and published Codes of Best Practices for various applications. These Best Practices help you to better understand how to employ fair use. CMSI guides are available for filmmakers, journalists, teachers, visual arts professionals, librarians, archivists and more.

[i] Computer and Communications Industry Association, “Fair Use Economy Represents One-Sixth of U.S. GDP,” September 12, 2007 press release, https://www.ccianet.org/artmanager/publish/news/First-Ever_Economic_Study_Calculates_Dollar_Value_of.shtml (accessed December 2, 2020).
For more about Fair Use, see Georgia Southern University's Fair Use page of the Office of Legal Affairs.

Copyright is not the only intellectual property (IP) that potentially permits a fair use defense for the use of another's IP without permission. Additional Fair Use-related doctrines, including Freedom of Speech, protect lawful fair use of the trademarks of others in certain instances. Educators, librarians, and their research constituents are often unaware of their fair use boundaries related to trademarks; in some instances these educators, librarians, and their constituents rely on expressive use of others’ trademarks for projects related to research, commentary, criticism, and other free speech applications. See article Fair Use and Freedom of Expression of Trademarks in Instruction, Research, and Publishing to review what fair use-related defenses exist to support educators, librarians, and their constituents (especially students and non-profit professionals) in reducing risks of infringement for expressive uses of trademarks.

Are you creating a website or blog devoted to famous personalities? Are you using images of celebrities as part of your site? If so, you need to consider both trademarks and the right of publicity of such famous personalities. According to Richard Stim of Nolo, "the right of publicity is the right to control the commercial exploitation of a person's name, image or persona." This is a growing IP issue on the fringe of trademark fair use. Nolo offers a helpful guide on Right of Publicity for further details. 

Orphaned works are copyrighted works whose copyright holders cannot be identified or found. If passed into law, the Orphan Works Act may address a universal challenge in finding copyright owners for  permission to use after a realistic good faith search. The pending act  may limit the copyright owners in demanding only reasonable  reimbursement at a later date, so long as the work utilized has provided  attribution. Further, there may be no infringement damages or attorney  fees for the orphaned work used.